17 May 2011

In 2003, rock-ribbed Republican Arnold Schwarzenegger moved into the California governor's mansion. Now term-limited out, Arnold — a practicing Roman Catholic — admits that this entire time he's been concealing his extramarital affair with a longtime employee, and the child who is the product of this philandering.

Ignoring the fact his own heterosexuality was hardly the key to marital success, Arnold felt certain other's homosexuality rendered them presumptively unworthy to marry at all. So Arnold vetoed marriage equality bills passed by the California legislature in 2005 and again in 2007, insisting that the issue should be decided by the courts or the voters.

He got his wish.

The next year brought the infamous Prop 8 referendum, intended to amend the California constitution to strip gays of their fundamental right to marry.

In a T2-style plot twist, the Governator suddenly sided with the good guys, and promised to fight Prop 8. He actually did very little, assuming the referendum couldn't pass, (conveniently ignoring California's embrace of homophobia had, in its not-so-distant past, even reached as far as the governor's mansion).

Of course Arnold was wrong — Prop 8 passed easily on the same ballot that put Barack Obama in the White House. It seems incongruous, but it really isn't. Naturally, the rampant and aggressive antigay bigotry within the Republican party has overshadowed the lower-key bigotry of Democrats, but their bigotry is quantifiable. Presaging California's vote, 3 out of 4 Missouri voters favored a marriage ban amendment on the same ballot where a majority also preferred to be represented in the US Senate by a dead Democrat rather than the odious — but at least biologically operational — Republican John Ashcroft.

Anyway, lawsuits challenging Prop 8 were filed in state and federal courts.

A majority of California's Supreme Court held in Strauss v. Horton that Prop 8 was cool by them because they felt California's referendum process grants voting majorities the power (a) to strip away gay people's fundamental rights, (b) to write gays out of the California constitution's equal protection clause, and (c) to force the state to discriminate on the basis of sexuality.

That astonishing conclusion came from the same court and even the same judge who, the previous year, wrote In re Marriage Cases:

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process...

[T]he right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the rightconstitutes a basic civil or human right of all people." [emphasis mine]

In other words, neither the law nor the legislature may alienate gay people from their inalienable rights...but their neighbors can.

The federal suit claiming Prop 8's amendments violated gay people's rights as US citizens is styled Perry v. Schwarzenegger.To Arnold's credit, he chose not to defend from the outset. The court allowed some antigay religious organizations to intervene and do the deed. They were first schooled, then utterly demolished at trial by the plaintiff's counsel Ted Olson and David Boise. The court held for the plaintiffs, and the defendant-intervenors predictably appealed, which appeal is currently pending.

From inception Perry v. Schwarzenegger has been cultivated to be a Supreme Court landmark. What that functionally means is that if SCOTUS hears it, Kennedy decides it. It's mighty hard to feel optimistic about that, given Kennedy is a politically conservative Roman Catholic. Yes, Kennedy wrote Lawrence v Texas, but he also wrote BSA v Dale. As they note over at SCOTUSblog, on the big cases, Kennedy votes with the RATS. There's a real possibility we'll get a modern Dred Scott nightmarethat will require generations to undo.

Anyway, it always struck me as unfortunate and unfair that after Arnold finally got on the right side of the issue, his name got stuck to the wrong side of this case. Learning that Arnold pushed us to the edge of this abyss while being a "family values" hypocrite, I felt that sympathy dry right up.

The harm he caused his family by disrespecting his marriage now just seems like a microcosm of the harm he caused gay families by disrespecting theirs.